John Ansbro was indicted for the crime of dumping injurious deposits within the harbor and adjacent waters of New York City, in violation of the act of congress of June 29, 1888 (25 Stat. 209, c. 496), was tried before Judge Benedict and a jury in the circuit court of the United States for the Southern district of New York, convicted, and sentenced, December 20, 1894, to six months' imprisonment. There were six counts in the indictment against him, three of which were waived by the district attorney. He was acquitted upon two, and convicted upon the second count alone. The act in question is entitled 'An act to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York City, by dumping or otherwise, and to punish and prevent such offences,' and has just been referred to in the case of The Bayonne, 16 Sup. Ct. 185.
By its first section the discharge or deposit of refuse, dirt, ashes, mud, and other specified matter, in the harbor of New York City, or adjacent waters, within the limits prescribed by the supervisor of the harbor, is forbidden, every such act made a misdemeanor, and every person engaged in, or who shall aid, abet, authorize, or instigate a violation of the section, subjected to a punishment therein prescribed. Section 2 provides that every master and engineer on board of any boat or vessel who shall knowingly engage in towing any scow, boat, or vessel loaded with such prohibited matter to any point or place of deposit or discharge in the waters of the harbor of New York, or in its adjacent or tributary waters, or in those of Long Island Sound, or to any point or place elsewhere than within the limits defined by the supervisor of the harbor, shall be deemed guilty of a violation of the act, and punished as provided. Section 3, under which Ansbro was convicted, is as follows:
'That in all cases of receiving on board of any scows or boats such forbidden matter or substance as herein described, it shall be the duty of the owner or master, or person acting in such capacity, on board of such scows or boats, before proceeding to take or tow the same to the place of deposit, to apply for and obtain from the supervisor of the harbor appointed hereunder a permit defining the precise limits within which the discharge of such scows or boats may be made; and any deviation from such dumping or discharging place specified in such permit shall be a misdemeanor within the meaning of this act; and the master and engineer, or person or persons acting in such capacity, on board of any towboat towing such scows or boats, shall be equally guilty of such offense with the master or person acting in the capacity of the master of the scow, and be liable to equal punishment.'
The punishment prescribed by sections 1 and 2 of the act consists of fines of not less than $250 or more than $500, or imprisonment not less than 30 days or more than 1 year, or both.
Ansbro sued out a writ of error from this court, and we are met on the threshold of the case with the question whether we can take jurisdiction. Under section 5 of the judiciary act of March 3, 1891 (26 Stat. 827, c. 517), appeals or writs of errror may be taken from the district courts or from the existing circuit courts directly to this court in any case in which the jurisdiction of the court is in issue and the question of jurisdiction is certified from the court below for decision, in cases of conviction of a capital or otherwise infamous crime, in any case that involves the construction or application of the constitution of the United States, and in any case in which the constitutionality of any low of the United States is drawn in question.
The offense for which Ansbro was indicted is not punishable by imprisonment for a term of over one year, or at hard labor, and persons convicted thereof cannot be sentenced to imprisonment in a penitentiary. Rev. St. §§ 5541, 5542. Ansbro was not convicted, therefore, of an infamous crime.
If the jurisdiction of the circuit court was in issue, no certificate of such question of jurisdiction to this court for decision appears in the record, and without such certificate the case is not properly here on that ground.